Carmel Attorney Gets 90-day Suspension For Disobeying Court Order

IL for www.theindianalwyer.com

An attorney with a history of financial hardships already under suspension for failing to pay her dues has been suspended from the practice of law in Indiana for 90 days with automatic reinstatement.

The Indiana Supreme Court in an order issued Thursday suspended Carmel attorney Marjorie Gabriel effective immediately for committing attorney misconduct by knowingly disobeying court orders.

Gabriel’s troubles began in 2008 when she left a prosecutorial position in California to take care of her ill father. Gabriel was granted power of attorney to act as her father’s attorney-in-fact, stating in part that she be entitled to reimbursement for all reasonable expenses incurred on his behalf, as well as to reasonable compensation for any services provided.

Gabriel, who was later appointed guardian of her father’s estate, was charged with violating Professional Conduct Rules 3.4(c) and 8.4(b) by the Indiana Supreme Court Disciplinary Commission after she made payments and withdrawals from her parent’s estate to herself without obtaining the requisite court approval after receiving about $40,000 in proceeds from the sale of her parents’ residence.

The disciplinary order in In the Matter of Marjonie Diane Gabriel, 18S-DI-6, also states Gabriel violated a restraining order that had been issued by the guardianship court, and failed to file the required accounting and comply with numerous court orders to do so.

In early 2016, a guardianship court held Gabriel in contempt, appointed a successor guardian, and again ordered Respondent to provide an accounting. She failed to do so and was again held in contempt in November 2016.

In a petition to the high court, the commission requested a review of a hearing officer’s findings and conclusions that it failed to prove Gabriel’s actions amounted to criminal conversion and/or exploitation of an endangered adult in violation of Rule 8.4(b).

Justices agreed with the hearing officer’s findings in the per curium order that even assuming Gabriel’s exercise of control over guardianship funds was unauthorized, she reasonably believed under the circumstances that her actions were authorized.

To support it conclusion, the high court pointed to findings that Gabriel’s actions were not for her own profit or advantage because she used the guardianship funds as partial reimbursement for expenses she had advanced and liabilities she had incurred in providing care for her father. It further acknowledged Gabriel’s father suffered no actual harm or potential harm from her conduct.

While not excusing her conduct, the court wrote that this was a strong mitigating factor, especially as Gabriel was dealing with her own medical issues. “Respondent was striving under very difficult circumstances to help her ailing father, and in the big picture her various expenditures of personal and guardianship assets resulted in a net gain for her father.”

The justices rejected the Rule 8.4(b) charge, finding Gabriel’s “unique, extremely difficult circumstances” did not raise concerns about her general character or fitness to practice law. It did, however, find Gabriel violated Rule 3.4(c) and thus ordered her 90-day suspension with automatic reinstatement.

Gabriel shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26) and will be automatically reinstated to the practice of law if no other suspensions are in effect at that time. All justices concurred, with Justice Mark Massa not participating.